Dan Cox addresses the press after court hearings Tuesday with his lawyers, Ed Hartman and Matthew Wilson. Credit: Ginny Bixby

The Montgomery County Circuit Court heard arguments Tuesday in a civil challenge brought by Dan Cox, Republican nominee for Maryland governor, against the Maryland State Board of Elections’ request to begin processing mail-in ballots on Oct. 1.

The board is seeking a judicial order to suspend a state law that prohibits the opening of mail-in ballots before the Wednesday after an election. 

A lawyer for the Board of Elections explained that the board petitioned for the exception after jurisdictions received an unprecedented number of mail-in ballots during the July primary election, which resulted in weeks of ballot canvassing. About 75,000 mail-in ballots were counted in Montgomery County alone.

Daniel Kobrin, counsel for the Board of Elections, said the board predicts it could take until Christmas or even New Year’s Day to finalize election results for the Nov. 8 general election if election workers aren’t permitted to start processing ballots early.

Cox, on the other hand, thinks this is a decision that should be made by the state legislature and not in a courtroom, he said in a press conference immediately after Tuesday’s hearing.

“[The Board of Elections] started to try to convene a legislative session here at the Montgomery County Circuit Court, rather than the constitutional process,” Cox said. 

Cox’s lawyers argued the separation of powers as outlined in the state constitution should not permit the judicial branch to make decisions about elections. They said these decisions should be left up to the General Assembly as the legislative branch, and the court should not be able to grant the Board of Elections’ request. Rather, Cox’s counsel argued, this should be an issue discussed in legislative session. 

Kobrin argued on behalf of the Board of Elections that there are other examples of election matters being delegated to the judiciary – for example, the court can rule to nullify an election – and that the elections calendar is set by the judiciary. Kobrin said it isn’t uncommon for one branch of government to delegate tasks to another. 

Cox’s counsel also argued the board doesn’t have substantial reasoning for an emergency to require this extended timeline.

Ed Hartman, one of the lawyers representing Cox, said under the state constitution, an emergency that would justify an exception like the one requested by the state elections board must be “sudden, unexpected and unanticipated.” He argued the deluge of ballots was not unexpected and that the board has been dealing with this issue since the COVID-19 pandemic began in 2020.

Kobrin said while mail-in voting can be generally expected to be more prevalent than in the past due to the pandemic, there was no way of predicting the high numbers of mail-in ballots that were received during the primary and that this constitutes an emergency.

Kobrin also said there are additional complications to processing mail-in ballots. For example, 10% of votes in the primary were considered web delivery, a process in which voters who sign up can receive a web- delivered ballot online that they can print out and send in on their own. Kobrin said these ballots don’t fit in the standard ballot processing machine and have to be resized. He also pointed to higher rates of provisional ballots being used with the increase in mail-in ballots, and said these ballots are especially time-consuming to verify.

As the election rapidly approaches, Judge James Bonifant said he’ll make his decision by 3 p.m. Friday. 

During a press conference following the hearing, Cox praised the work of Hartman and his other lawyer, Matthew Wilson, whom he noted was a law school classmate and friend.  

“In the decades to come, if we set a precedent that power can be delegated from the legislature to the courts in the instance of elections, we may have a problem in elections long after we’re dead. And so this is for the future. This is for the people of Maryland,” Hartman said.